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Put African Court in full use, AU member states urged

Kenya's Kirinyaga Country civic leaders visited the court

January 28, 2018

By Joe Lihundi, Tranquility News reporter, Arusha

Members of County Assembly (MCAs) from Kirinyaga County in Kenya have vowed to push the State to allow individuals and groups in the country to file cases at the African Court on Human and People’s Rights (AfCHPR) .

There is no reason for Kenyans to sue each other at ICC (International Criminal Court) when they have their own homegrown court at their disposal, the visiting civic leaders said at the seat of the court in Arusha recently.

The Kirinyaga Country Speaker, Mr David Githanda, the Clerk, Mr Kaman Adi, and 15 MCAs elected in the last year’s elections visited the court to acquaint themselves with services, operations and the impact of the court on the continent.

The African Centre for Capacity Building, a non-governmental organisation registered to build the capacity of institutions from both public and private sectors in Kenya, has organised the study tour.

Members of County Assembly from Kirinyaga County in Kenya pose for a souvenir picture at the headquarters of the African Court on Human and Peoples’ Rights in Arusha recently. PHOTO | JOE LIHUNDI

“We’ve just learnt that our central government has not yet made declaration recognising the competence of the court to receive cases from NGOs and individuals,” admitted Mr Joel Wagura, the Deputy Speaker and MCA representing Kariti Ward, adding:

“Now that we understand the barrier, we’ll discuss it at the county level and assign our senator to work on it at the national level. We’ve to give this court its due importance for future cases.”

Mr Githanda advised the court to consider investing in public awareness on its activities, targeting members of parliament, local media and vocal civil society organisations in Kenya and other African countries.

The AfCHPR Deputy Registrar, Mr Nouhou Madani Diallo, told the MCAs that Kenya though is among 30 African Union member states that have ratified the protocol establishing the court, it has not made the declaration to allow individuals and NGOs access it.

Now that we understand the barrier, we’ll discuss it at the county level and assign our senator to work on it at the national level. We’ve to give this court its due importance for future cases,” – Member of County Assembly from Kirinyaga County, Kenya.

All what the court can do at the moment is to refer Kenyan cases to the African Commission and Human and People’s Rights based in Banjul, Gambia, he said

The AfCHPR has jurisdiction over all cases and disputes submitted to it concerning the interpretation and application of the African Charter on Human and Peoples’ Rights and any other relevant human rights instrument ratified by the states.

However, only eight countries have so far made the declaration recognising the competence of the court to receive cases from individuals and groups, namely Benin, Burkina Faso, Côte d’Ivoire, Ghana, Mali, Malawi, Tanzania and Tunisia. Rwanda withdrew its declaration.

Mr Diallo cited a number of cases the AfCHPR has successfully ruled out, including a defamation one involving Bukina Faso  against journalist Lohé Issa Konaté in 2014 and a state prosecutor.

In October 2012, the Ouagadougou High Court found Mr Konate guilty and sentenced him to one-year imprisonment and a fine of $3000 and $9,000 worth damages was to be paid to the prosecutor.

Konate and his colleague were charged with accusing the state prosecutor of corruption in his report. In response, the prosecutor filed a complaint against the journalist and a co-defendant for defamation, public insult, and contempt of court.

Criminal charges against both defendants were also filed and damages sought.

However, the AfCHPR found the conviction was a disproportionate interference with the applicant’s guaranteed rights to freedom of expression.

The court notes in its judgment that public figures such as prosecutors must tolerate more criticism than private individuals.

The regional court ordered Burkina Faso to amend its legislation on defamation to make it compliant with international standards and report to the AfCHPR in two years. “And the government complied,” Mr Diallo said.

The African Court on Human and Peoples’ Rights Deputy Registrar, Mr Nouhou Madani Diallo (fourth left), in a group picture with Members of Parliament from the German ruling Christian Democratic Union who also visited the court headquarters in Arusha recently. PHOTO | JOE LIHUMDI.

African countries established the AfCHPR to protect human and peoples’ rights on the continent. It complements and reinforces the functions of the African Commission on Human and Peoples’ Rights.

It may receive cases filed by the AfCHPR, state parties to the Protocol to the African Charter on Human and People’s Rights adopted in Ouagadougou, Bukina Faso, in June 1998, or African intergovernmental organisations.

Non-governmental organisations with observer status before the African Commission and individuals can also institute cases directly before the court provided the state against which they are complaining has legally recognised the jurisdiction of the court.

The court delivered its first judgment in 2009. As on August 30, 2017, it had received 147 applications and finalised 32 cases.

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